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tdlawyer
tdlawyer, Lawyer
Category: Law
Satisfied Customers: 1096
Experience:  11 years experience of general practice.
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I live in an end cottage with a right of way across the back

Resolved Question:

I live in an end cottage with a right of way across the back path and along the side of our property for the other 5 owners of the other cottages. This right of way is used mostly for access for removing garden refuse and collection of domestic refuse. However, our next door neighbour carries out building work and everything associated with this comes along our path - ladders, cement mixers, rotavators, tools. We recently had 3 weeks where we counted him going back and forth up to 50 times a day (including the weekends) because he was working locally and kept forgetting things! The path is on our title documents as belonging to us with the right of way. When we bought the property 12 years' ago, we were not told that a building business was in existence in the attached cottage (and I think it has become worse over the recent years because of him taking on local, smaller jobs). We are retired and having someone walking constantly around our back and side lounge windows is driving us crazy. Our neighbour also leaves the gate at the front open when he is trying to manoeuvre his equipment to and fro. Is there anything we can do, as we pay council tax rated at E and his is probably a B/C but we are having to put up with the disruption on a daily basis?

End of tether
Submitted: 3 years ago.
Category: Law
Expert:  tdlawyer replied 3 years ago.

tdlawyer :

Hello, thank you to your question. My name is ***** ***** I can assist you with this.

tdlawyer :

There are probably three different issues here.

tdlawyer :

The first, is whether the right of way allows your neighbour to pass for the purposes for which he is presently using it.

tdlawyer :

The answer is down to the exact wording of the right of way. You need to check whether it specifically limits the amount of usage of the right-of-way, or the particular purpose for which it can be used.

tdlawyer :

Secondly, is the issue as to whether your neighbour is entitled to use his premises for business purposes. Clearly, if he was not using the business purposes, there is unlikely to be an issue, certainly not in the nature or degree of the present problem.

tdlawyer :

Therefore, you need to check against his title at the Land Registry, to see whether there are any restrictive covenants that require the premises only to be used as a residential dwelling house. That is a fairly common provision. If that exists, then you may be able to prevent him from engaging in work related activities from his premises. You might not necessarily choose to do that, but you could certainly use that into discussions that you wished to have with him.

tdlawyer :

Thirdly, is the issue as to whether the nature and extent of the use of the right of way (what is potentially lawful according to the terms of the right-of-way) amounts to a nuisance. That would be on the basis of excessive use, and certainly 50 times a day, sounds excessive to me!

tdlawyer :

This third issue, about nuisance, is perhaps one of the most difficult, and I would suggest you focus upon the first two options initially.

tdlawyer :

Are you there?

Customer: The right of way is not specific - these are old cottages from about 1897. I think it is more a question of whether he is allowed to carry on a building business from his back garden. The neighbour the other side of him has complained to us about the garden being a builder's yard.
tdlawyer :

The first thing, but is always worth doing, is trying to speak to the neighbour and agree a more sensible use of the right-of-way.

tdlawyer :

If discussions fail, then the next step might be to instruct a solicitor to refer to (or investigate for you) is three issues I mentioned above, together with anything else he might think appropriate. A solicitor could write a strongly worded letter to the neighbour, which would make him realise that this is a serious concern to you, and that you are treating it seriously.

tdlawyer :

Most issues of this type will end at that point. Wen people really appreciate that they do have an adverse impact upon their neighbours, more often than not, that is appreciated and sensible steps are then taken to resolve the matter.

tdlawyer :

However, if you need to, you could always then consider issuing court proceedings with a view to obtaining an injunction to prevent your neighbour from any unreasonable, unlawful or excessive use of the right of way.

Customer: he has lived here for many years and the building business he carries out is his livelihood. Don't think issuing court proceedings would help if we wanted to sell! However we will investigate your other suggestions.
tdlawyer :

You are right, in the court proceedings rarely help if you choose to sell, although they should not be of any real impact once they are concluded. But yes, do explore the options, and if you need to discuss anything further with me, please feel free to do so at any time.

tdlawyer :

Cam I ask whether you are happy with my service is afternoon, or is tere anything more I can assist with?

Customer: I am happy with your service - I knew it would be a difficult situation to resolve. There is nothing else, thank you.
tdlawyer :

Thank you - hope you have a great weekend. Regards. Tony.

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